Finding “extraordinary circumstances in a legal system that was openly hostile to the [plaintiffs], courts that were practically closed to their claims, a City that blamed them…and actually suppressed the facts, an era of Klan domination of the courts and police force, and the era of Jim Crow,” the district court determined that there is no question that there are exceptional circumstances here” sufficient to conclude that the political and social climate after the riot simply was not one wherein the Plaintiff had a true opportunity to purse their legal rights.” See Alexander v. State of Oklahoma United States District Court, N.D. Oklahoma Mar 19, 2004 Case No. 03-C-133-E (N.D. Okla. Mar. 19, 2004)

 

Finding that petitioners “inability to read, understand English, combined with denial of access to translation or legal assistance, can constitute extraordinary circumstances that trigger equitable tolling” Pabon v. Mahanoy 654 F.3d 385 (3d Cir. 2011)

 

Second, “extraordinary, . . . and special circumstances” must be present for a Court to grant Rule 60(b)(6) motion. Moolenaar v. Gov’t of the Virgin Islands, 822 F.2d 1342, 1346 (3d Cir. 1987).

 

This Circuit has defined the “substantial justification” standard as “essentially . . . one of reasonableness, not in terms of result, but in terms of whether the Government’s position, even though unsuccessfully taken, had a `reasonable basis both in law and fact.'” Dougherty, supra, 711 F.2d at 563 (footnote omitted); Tressler, supra, 748 F.2d at 149. Christie v. Commissioner of Social Security Civil Action No. 03-2265 (SRC) (MAS) (D.N.J. Aug. 15, 2008) 1 more… Plaintiff should also be able to recover the costs associated with her appeal to the Third Circuit. Although the issue of which regulation the ALJ should have used was an issue of first impression in the Third Circuit, there is no hard and fast rule that any unsettled law qualifies as “special circumstances” under the EAJA. Defendant has failed to adequately show the appeal was a special circumstance. The Third Circuit specifically stated that this case presented “unusual circumstances,” which suggests the decision is limited to this case and thus does not clarify any unsettled law. Furthermore, the EAJA states that a party can recover fees “incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action.” 28 U.S.C. § 2412(d)(1)(A). Plaintiff’s appeal to the Third Circuit is a proceeding for judicial review of agency action within the meaning of the EAJA and Plaintiff only had to continue the appeals process based on Defendant’s unjustified position regarding Plaintiff’s application for disability benefits. Therefore, attorney’s fees and costs associated with Plaintiff’s appeal to the Third Circuit are recoverable. PAGE 8 The Supreme Court has defined “substantial justification” as “`justified in substance or in the main’ — that is, justified to a degree that could satisfy a reasonable person. That is no different from the `reasonable basis both in law and fact’ formulation adopted by the Ninth Circuit and the vast majority of other Courts of Appeals that have addressed this issue.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial justification “constitute[s] a middle ground between an automatic award of fees to a prevailing party and an award made only when the government’s position was frivolous.” Dougherty v. Lehman, 711 F.2d 555, 563 (3d Cir. 1983). The government must show that its litigation position as well as its “pre-complaint position” were substantially justified. Natural Resources Defense Council, Inc. v. U.S. E.P.A., 703 F.2d 700, 711-712 (3d Cir. 1983).

 

Chez Sez III Corp. v. Township of Union 945 F.2d 628 (3d Cir. 1991) Special circumstances exist: (1) Uncertain issues of state law underlying the federal constitutional claims brought in federal court; (2) State law issues amenable to a state court interpretation that would obviate the need for, or substantially narrow, the scope of adjudication of the constitutional claims; (3) A federal court’s erroneous construction of state law would be disruptive of important state policies. D’Iorio v. County of Delaware, 592 F.2d 681, 686 (3d Cir. 1978), overruled on other grounds, Kershner v. Mazurkiewicz, 670 F.2d 440, 448 (3d Cir. 1982) (in banc). Following its argument on substantial justification, the government refers almost parenthetically to the second provision of Section 2412(d)(1)(A) which permits a court to refuse to award fees where “special circumstances would make an award unjust.” 28 U.S.C. § 2412(d)(1)(A) (Supp. IV, 1980). The government claims that such circumstances exist in this case. Brinker v. Guiffrida 798 F.2d 661 (3d Cir. 1986) We agree with the Commonwealth that Granberry relates only to the special circumstance of the prosecution never having raised the exhaustion defense prior to appeal so that the Supreme Court permitted the court of appeals to rule on the merits of the petition. Lambert v. Blackwell 134 F.3d 506 (3d Cir. 1997) See Farrar v. Hobby, 506 U.S. 103, 118 (1992) (O’Connor, J., concurring) (“We have explained that even the prevailing plaintiff may be denied fees if ‘special circumstances would render [the] award unjust.'” (quoting Hensley v. Eckerhart, 461 U.S. 424, 429 (1983))). Ward v. Phila. Parking Auth. 634 Fed. Appx. 901 (3d Cir. 2015) Pittsburgh Plate Glass Co., 313 U.S. at 159-62, 61 S.Ct. at 915-17 (stating the special circumstances standard for the first time); Aaron’s Office Furniture Co., 825 F.2d at 1170-73 (ruling that intervening decisional law did not constitute special or extraordinary circumstances). The Nursing Home contends that the Supreme Court’s decision in Health Care Retirement Corp. provides an “extraordinary circumstance” which preserves its right to have the bargaining unit reconsidered. Hirsch v. Konig 895 F. Supp. 688 (D.N.J. 1995)

 

“The circuit courts lack consistency as to the circumstances under which counsel should be appointed. Several circuits have clearly stated that counsel should only be appointed in “exceptional circumstances.” The United States Court of Appeals for the Fourth Circuit followed this approach in Cook v. Bounds.77 The Cook court held that the plaintiff failed to show the existence of exceptional circumstances, and thus upheld the district court’s order denying the appointment of counsel. 78 The plaintiff, a life-term prisoner, was involved in a jail break with twelve other prisoners. 79 After his recapture, he filed a civil rights action regarding the conditions of his confinement.80 Prior to trial, the prisoner plaintiff moved for the appointment of counsel.8 1 The court denied the motion, holding that no exceptional circumstances existed to justify such an appointment.8 2 The court, however, gave no guidance as to what constituted exceptional circumstances. 83 Likewise, the United States Court of Appeals for the Fifth Circuit in Branch v. Cole,84 stated that “[n ] o comprehensive definition of exceptional circumstances is practical.”8 5 Instead, the Branch court stated that two factors should determine the existence of exceptional circumstances: (1) the ability of the individual bringing the case; and (2) the type and complexity of the case.86 Branch involved an alleged civil rights violation where the prisoner claimed that the correctional officers used excessive force.87 The court, however, never examined whether exceptional circumstances were present under the announced factors.8 8 Instead, the court noted that the discretion to determine the appointment of counsel is fixed at the trial court level. 89 Nevertheless, because the trial court denied the prisoner’s request for counsel due to a lack of attorneys willing to take uncompensated appointments, the court of appeals remanded for reconsideration of the appointment of counsel under the exceptional circumstances standard.90 Similarly, in Aldabe v. Aldabe,9 1 the Ninth Circuit refused to appoint counsel for a plaintiff who alleged a deprivation of her civil rights in a divorce proceeding, finding no exceptional circumstances present to justify such appointment.92 Likewise, the Sixth Circuit in Lavado v. Keohane9 3 upheld the denial of counsel to a former federal prisoner who alleged violation of his constitutional rights when prison officials opened his mail. 94 The circuit court concluded that the district court was correct in finding a lack of exceptional circumstances warranting the appointment of counsel. 95 This time, however, the Sixth Circuit gave additional guidance as to the meaning of “exceptional circumstances.” The Lavado court stated that the inquiry will usually include an examination of the type of case, a determination of the plaintiff’s ability to represent himself and an analysis of the level of complexity of the legal and factual issues involved.96 Likewise, the United States Court of Appeals for the First Circuit, in Cookish v. Cunningham,97 followed the exceptional circumstances approach and outlined a list of the factors to be considered in a case-by-case analysis.98 According to the Cookish court, factors to be weighed in the determination include: (1) the indigent’s ability to conduct an investigation; (2) the indigent’s capability of presenting the case; and (3) the relative complexity of the issues involved.99 Applying those factors, the court in Cookish found that no exceptional circumstances existed to justify the appointment of counsel. 100 Occasionally, the application of these factors has resulted in a finding of exceptional circumstances. 10 1 For example, in Whisenant v. Yuam, 102 the Fourth Circuit found that exceptional circumstances existed where a prisoner was denied appointment of counsel in his civil rights action for denial of adequate medical care.103 The court relied specifically on the plaintiff’s lack of education in legal matters, his incarcerated status preventing contact with witnesses, the sharp conflict in testimony and the plaintiff’s lack of training in cross-examination. 10 4 The combination of these factors convinced the court that exceptional circumstances justified the appointment of counsel.1 05Similarly, in Moore v. Mabus,10 6 the Fifth Circuit found exceptional circumstances existed where a prisoner alleged mistreatment after testing positive for the HIV virus.’ 0 7 The court found the complex nature of the issues required professional assistance.’ 08 Further, the difficult subject of AIDS control in a correctional setting exceeded the prisoner’s ability to investigate. 10 9 Finally, the scope of the legal issues and the necessity of developing expert testimony both required professional trial skills.’ 10 As a result of these factors, the court found that exceptional circumstances existed and directed the district court to appoint counsel.”‘ Source: Right to Counsel – The Third Circuit Delivers Indigent Civil Litigants from Exceptional Circumstances Kimberly A. Owens

 

Stating attorney neglect may constitute extraordinary circumstance supporting relief under Rule 60(b) Ethan Michael Inc. v. Union 392 Fed. Appx. 906 (3d Cir. 2010)

 

We concluded that, because the client was blameless for the attorney’s misconduct, the attorney’s abandonment of his client constituted sufficiently extraordinary circumstances to warrant relief under Rule 60(b)(6). Id. at 978-79.   Ethan Michael Inc. v. Union
392 Fed. Appx. 906 (3d Cir. 2010)

 

Respondent concedes that ineffective assistance of counsel may support a motion to reopen based on exceptional circumstances. Resp. Br. at 27. Borges v. Gonzales 402 F.3d 398 (3d Cir. 2005). Noting that “ineffective assistance of counsel may support a motion to reopen [an in absentia removal order] based on exceptional circumstances”

 

We have previously held that attorney neglect may constitute an extraordinary circumstance supporting relief under Rule 60(b)(6). For example, in Carter v. Albert Einstein Medical Center, 804 F.2d 805 (3d Cir. 1986), the plaintiffs attorney failed to respond to the defendant’s interrogatories, and, after the court ordered her to respond and she again failed to do so, the court dismissed the plaintiffs case as a discovery sanction. Id. at 806. The attorney, however, had told the client that she had complied with the court order. Id. The client did not learn of the dismissal until four months later, when he independently checked the docket for his case. Id. He then discharged his attorney and filed a pro se motion under Rule 60(b), arguing that his attorney’s mismanagement warranted reopening the case. Id., The district court denied the motion, and we reversed, holding that the denial constituted an abuse of discretion. Id. at 807. We concluded that the client “should not shoulder the burden of [his attorney’s] in-competence alone” because he was not responsible for the attorney’s negligence, had no reason to know of the misconduct, and acted reasonably after discovering it. Id. at 808. Ethan Michael Inc. v. Union 392 Fed. Appx. 906 (3d Cir. 2010) 

 

“Recently, we considered the section 2254 exhaustion requirement with regard to a mixed petition where, as here, the state asserted the nonexhaustion defense in the district court. Christy v. Horn, 115 F.3d 201, 206 (3d Cir. 1997). Acknowledging the Supreme Court’s strong presumption in favor of exhaustion, we also recognized that “in rare cases exceptional circumstances of peculiar urgency may exist which permit a federal court to entertain an unexhausted claim.” Id. at 206-07 (citations omitted). We explained that such circumstances exist where “state remedies are inadequate or fail to afford a full and fair adjudication of the federal contentions raised, or where exhaustion in state court would be `futile.’” Id. at 207 (citations omitted). Applying this principle in Christy, we declined to find an exceptional circumstance which would excuse nonexhaustion. We found the mere risk that the state courts would not stay the petitioner’s execution while his federal constitutional claims are being litigated did not amount to an “unusual circumstance.” The more appropriate inquiry, we found, was to focus on the actuality that state courts will refuse to stay an execution while federal claims are pending. Id. Lambert v. Blackwell 134 F.3d 506 (3d Cir. 1997)”

 

Upholding trial court’s finding that exceptional circumstances existed and justified the award of attorneys’ fees, based solely on defendant’s culpable litigation tactics. Securacomm Consulting, Inc. v. Securacom Inc. 224 F.3d 273 (3d Cir. 2000)

 

Suggesting importance of party’s “stonewalling” in assessment whether Morton’s exceptional circumstances exist. Id. at 880. Accordingly, I cannot agree when my colleagues state, “[w]e believe the New Jersey Supreme Court designed the `exceptional circumstances’ exception to apply only to egregious conduct.” Majority Op. at 27. One can only determine if conduct is egregious by examining the “exceptional circumstances” in which it occurred. Indeed, an examination of those circumstances may well establish that a particular polluter’s conduct was not egregious at all. Chemical Leaman Tank Lines v. Aetna Casualty 89 F.3d 976 (3d Cir. 1995)

 

Where in Brillhart the Court warned district courts against “[g]ratuitous interference with the orderly and comprehensive disposition of a state court litigation” and directed them to exercise discretion in deciding whether or not to proceed, 316 U.S. at 495, in Colorado River the Court referred to the “virtually unflagging obligation of the federal courts to exercise the jurisdiction given them”, and set forth an “exceptional circumstances” test of several factors that the district courts should utilize. 424 U.S. at 817-18. These factors are whether either court has assumed jurisdiction over property, the inconvenience of the federal forum, avoidance of piecemeal litigation, and the order in which the courts obtained jurisdiction. Id. at 818. Nylife Distributors, Inc. v. Adherence Group 72 F.3d 371 (3d Cir. 1995)

 

“Examples of exceptional circumstances include the unavailability of evidence despite the People’s due diligence in trying to obtain it and the need for additional time to prepare the case, justified by the exceptional circumstances of the case. The Court should not recognize an exceptional circumstance based on the District Attorney’s own conceded policy of remaining unaware, until arraignment, of accusatory instruments filed by police.” People v. Smietana 98 N.Y.2d 336 (N.Y. 2002)

 

Recognizing that egregious attorney neglect may amount to extraordinary circumstances. Ross v. Varano, 712 F.3d 784 (3d Cir. 2013) Baldayaque holds that “an attorney’s conduct if it is sufficiently egregious, may constitute the sort of `extraordinary circumstances’ that would justify the application of equitable tolling.” Baldayaque, 338 F.3d at 152-53. Schlueter v. Varner 384 F.3d 69 (3d Cir. 2004)

In the past, we have determined that extraordinary circumstances existed in a variety of factual scenarios. Kurz v. Phila. Elec. Co. (Kurz II), 96 F.3d 1544, 1553 (3d Cir. 1996) (collecting cases).

 

Extraordinary circumstances can arise where there are “affirmative acts of fraud,” where there is a “network of misrepresentations . . . over an extended course of dealing,” or where particular plaintiffs are especially vulnerable. Id. Pell v. E.I. DuPont De Nemours & Co. 539 F.3d 292 (3d Cir. 2008)

 

“Egregious use of subpoena power has been held to be a violation of the New Jersey Rules of Professional Conduct, in particular, R.P.C. 3.4(c) (fairness to opposing party and counsel) and R.P.C. 4.1 (truthfulness in statements to others). Id. at 572, 760 A.2d 353. Superior Court of New Jersey, Karen M. WELCH, Plaintiff, v. William B. WELCH, Defendant. Dawn’s criminal conduct amounts to egregious conduct. Id. at 92. Puchalsky v. Puchalsky DOCKET NO. A-0413-13T3, at *23 (N.J. Super. App. Div. Jun. 22, 2015).

 

Cautioning that “relief from a judgment under Rule 60 should be granted only in exceptional circumstances” Boughner v. Secretary of Health, Education & Welfare 572 F.2d 976 (3d Cir. 1978)

 

In re Hall, 170 N.J. 400 (2002) (three-year suspension imposed on the attorney who made numerous misrepresentations to trial and appellate judges, served a fraudulent subpoena. Indeed, “one sufficiently egregious action [may] constitute domestic violence under the Act, even with no history of abuse between the parties.” Cesare v. Cesare, 154 N.J. 394, 402 (1998), T.F. v. F.S. DOCKET NO. A-2137-15T4 (N.J. Super. App. Div. Jul. 7, 2017).

 

Her conduct becomes even more egregious when considering that she was acting as an attorney with an ethical duty of loyalty to her client/employer RPC 1.13; RPC 1.6; and a commensurate responsibility to comport herself at all times as an officer of the court. RPC 8.4 (c). Tartaglia v. Paine Webber 775 A.2d 786 (N.J. Super. App. Div. 2001)

 

Cases involving egregious violations of RPC 8.4(c), even where the attorney has a non-serious ethics history, have resulted in the imposition of terms of suspension. See, e.g., In re Carmel, 219 N.J. 539 (2014), In re Steiert, 220 N.J. 103 (2014), and In re Franco, 227 N.J. 155 (2016) and In re Clausen Docket No. DRB 16-426 (N.J. Jun. 27, 2017).

 

The Commission recognized “that where the underlying conduct is of an egregious nature, the imposition of a penalty up to and including removal is appropriate, regardless of an individual’s disciplinary history.” In re Stallworth 26 A.3d 1059 (N.J. 2011) However, on appeal, we noted “dismissal with prejudice, should not be invoked except in the case of egregious conduct on the part of” appellant. Id. at 393. Connors v. Sexton Studios, 270 N.J. Super. 390, 393 (App. Div. 1994).

 

Sacramento v. Lewis restated the long held precept that only the most egregious official conduct is unconstitutionally arbitrary. 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).

 

Concluding that exceptional circumstances must be “unusual” and beyond the control of the party requesting relief Although the rule does not provide a specific definition of “exceptional circumstances,” in Vitti the court likened the term to “extraordinary circumstances” which we defined in Flagg v. Township of Hazlet, 321 N.J.Super. 256 , 260, 728 A.2d 847 (App.Div. 1999), noting the term “in common parlance, denotes something unusual or remarkable.” Vitti, supra, 359 N.J.Super. at 50, 818 A.2d 384 . Rivers v. LSC Partnership 874 A.2d 597 (N.J. Super. App. Div. 2005)

 

In applying subsection (f) we have stated that “[t]he very essence of (f) is its capacity for relief in exceptional situations. And in such exceptional cases its boundaries are as expansive as the need to achieve equity and justice.” Ibid. (quoting Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)); see also Manning Eng’g, Inc. v. Hudson County Park Comm’n, 74 N.J. 113, 122 (1977) (stating that courts have authority under subsection (f) to grant relief where it is “necessary to achieve a fair and just result”). Similar to subsection (e), because of the importance in the finality of judgments, relief under subsection (f) is available only when “truly exceptional circumstances are present.” Housing Auth., supra, 135 N.J. at 286 (citing Baumann v. Marinaro, 95 N.J. 380, 395 (1984)) (emphasis added). In the Matter of the J.N.H 799 A.2d 518 (N.J. 2002)

 

The “exceptional circumstances” requirement addresses that concern over witness unavailability as well as the concerns of surprise and unfairness. Thomas R. Trenker, Annotation, Pretrial Discovery Of Facts Known and Opinions Held by Opponent’s Experts Under Rule 26(b)(4) of the Federal Rules of Civil Procedure, 33 A.L.R. Fed. 403 (1977).State v. Chisolm DOCKET NO. A-3266-13T3 (N.J. Super. App. Div. Feb. 8, 2017)

 

In this case, the most substantial “exceptional circumstances” standard applies. Again, that term is new. It did not appear in the prior version of R. 4:24-1. Indeed, the term “exceptional circumstances” has been used relatively infrequently in the rules. The term “extraordinary circumstances” has been used much more frequently. The terms “exceptional circumstances” and “extraordinary circumstances” are similar. It might even be argued they are interchangeable. In any event, the cases interpreting the term “extraordinary circumstances” are instructive. See Hartsfied v. Fantini, 149 N.J. 611, 619 (1997)

 

(an attorney’s mistake cannot give rise to extraordinary circumstances capable of relaxing the thirty-day limitations period for filing a demand for trial de novo after arbitration), and Wallace v. JFK Hartwyck at Oak Tree, Inc. 149 N.J. 605, 610, (1997) (same). See also Ricra v. Barbera, 328 N.J. Super. 424 (App. Div. 2000) (in the context of late filings, attorney carelessness does not qualify as extraordinary circumstances) and Martinelli v. Farm-Rite, Inc., 345 N.J. Super. 306 (App.Div. 2001) (malfunction in computer system does not establish extraordinary circumstances require to extend the time for filing of rejection of arbitrator’s award). Citing Vitti v. Brown 818 A.2d 384 (N.J. Super. App. Div. 2003)